THE PRIVY COUNCIL RULES

At the moment the Privy Council is the focus of attention with regard to a final determination on the vexed question of the mandatory nature of the death penalty. The Judicial Committee of the Privy Council is our highest court of appeal. This is the case for other Commonwealth countries as well. In other words, its decisions are final and are the highest authority as guides in mapping out the rules for our daily lives. The lives of many in this “death sentence appeal” for instance, literally hang in the balance, no pun intended. At the same time rumors have already begun to circulate as to who shall be appointed the President of the Caribbean Court of Justice which has recently been created to exercise not only an original jurisdiction over matters of interpretation of the Treaty of Chaguaramas but to replace the Privy Council as the final court of appeal.

In Trinidad this has become embroiled in controversy and matters have reached a head in Jamaica where the Bill adopting the Caribbean Court of Justice has been challenged as being unconstitutional. Until the dust settles on the status of the CCJ the Privy Council rules. From time to time we will bring to your attention a brief look into the most recent decisions of the Law Lords which  for the moment dictates the manner in which we are to structure our society. Make your insurance claim on time! (Super Chem Products Limited v American Life and General Insurance Company Limited 12th January 2004): In this appeal, the Privy Council had to consider the terms of insurance policies issued to Super Chem by American Life to determine whether Super Chem was entitled to claim under those polices for losses to large parts of its factory, stock and equipment in a fire which occurred at its premises in Pointe-a-Pierre on April 1990. 

An interesting issue that arose in this appeal was whether an insurer can rely on a limitation provision in the insurance policy which required the insured to commence his action against the insurer within a limited period of time. It was accepted that the insured’s claim was made outside the time period. Super Chem argued that its brokers had prepared a consequential loss policy which was in a standard form which contained the limitation provisions and therefore Super Chem the insured itself had no knowledge of those terms. The Privy Council ruled however that the brokers committed the insured to the contract on all the terms in that standard form and therefore had knowledge of the terms limiting its right to commence its claim against the insurers. Furthermore the Privy Council ruled that even though an insurer may continue to negotiate with an insured with regard to a potential claim, unless there is a clear and unequivocal representation by the insurer that it will not rely on the time bar to resist a potential claim it is entitled even after protracted negotiations to resist a claim on the basis that it is out of time. Apparently the Law Lords have given credence to an insurers’ strategy of “playing dead to catch corbeaux...”

Curb your enthusiasm (Mitra Harracksing v AG and anor 15th January 2004): An altercation between the appellant and a woman in Back Street, Tunapuna, led to the police being summoned on a complaint by the woman that the appellant had damaged a vase. According to the facts recorded by the trial judge, at 11pm a police van arrived with three police officers in plain clothes. They barged through the front door, dragged the appellant into the van where he was visited with some “treatment” during his trip to the station. During the trial the officers denied this version of the story and asserted that it was the appellant who was using obscene language and had to be taken to the station and be charged. The appellant was never charged for malicious damage. The Privy Council agreed with the trial judge that the officers were guilty of assault and false imprisonment of the appellant and so their conduct was not merely overzealous but tortious in that the acts were really done from some motive other than an honest desire to execute the statutory or other legal duty and an honest belief that they are justified by statutory or other legal authority. A note of warning to the over zealous police officers in our service.

The need to discipline professionals (Maurice John v The Royal College of Veterinary Surgeons 19th January 2004): The Disciplinary Committee of the Royal College of Veterinary Surgeon in South Wales, directed that the name of the appellant be removed from the register, thereby preventing him from practicing veterinary surgery, on the basis that he had been convicted of several criminal offences rendering him unfit to practice veterinary surgery. He was also suspended for six moths for a separate incident in respect of which he was found guilty of disgraceful conduct in a professional respect. The Privy Council saw this as a very unusual case as the appellant was a great lover of veterinary surgery, dedicated and competent as a surgeon, willing to be called out any time of day or night to attend to a sick creature. But even though no animal would ever dream of making a complaint against the appellant, he had a problem with people.

The Law Lords observed that he combined independence of spirit and a passion for justice with a flaming temper and complete insensitivity to the feelings of others. The several charges and convictions he faced in fact ranged from erecting offensive signs outside his practice, trying to effect a citizen’s arrest of a magistrate in court, assaulting an officer and on one instance resisted arrest, when stopped by the police, by locking himself in his car and pretending to be asleep. The police had to break in. The Law Lords were very conscious that deprivation of the appellant’s services as a veterinary surgeon would be a loss to the animal-owning public in South Wales. But they saw that veterinary surgeons as professionals had wider duties than the care of animals.  They are expected to conduct themselves generally in accordance with the standards of professional men and women and failure to do so may reflect upon the reputation of the profession as a whole. The violent or anti-social behaviour of the kind involved in the appellant’s convictions in principle can be a ground for a finding that he is unfit to practice as a member of the profession. Although they expressed the hope that he can be returned to the Register, we wonder what the Law Lords may think of the conduct of some of our professionals….

The Law Association of Trinidad and Tobago.